Post on 24-Feb-2022
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PROFESSIONAL ETHICS
By Adarsh Kumar
From City Academy Law College,
University of Lucknow
It is widely acknowledged that the legal
profession, as it exists in India today, is a
product of the legal system which came into
being with the advent of British Rule in
India.
It is thus believed that the history of the
legal profession in India begins with the
Establishment of the British Court in
Bombay in1672 by Governor Gerald
Aungier. The first Attorney General
appointed by the Governor was George
Wilcox, who was ‘acquainted with legal
business and particularly in the
administration of estates on deceased
persons on granting of probate’.
By a Charter granted by King George I on
24th September 1726, a Court of Record in
the name of Mayor’s Court and a Court of
Record in the name of Mayor’s Court and a
Court of Record on the nature of a Court of
Oyer and Terminer and Gaol Delivery w
as established in Madras, Bombay and
Calcutta. It is said that in Madras there were
four Attorneys at the Mayor’s Court in 1764
and the same number at Calcutta in 1764.
Over the years, the Mayor’s Court improved
the quality of justice and gave importance to
the pleading of case because they were
Crown Courts with a right of appeal, first to
the Governor in Council and, if necessary,
over him to the Privy Council. During the
era of the Mayor’s Court two important
professional principles were established.
The Charter establishing the Mayor’s Court
did not lay down qualifications for persons
who would act and plead as legal
practitioners in those courts.
The expression ‘Advocate’ then extended
only to England and Irish Barristers and
Members of the Faculty of Advocates in
Scotland and the expression ‘Attorneys’
then meant only the British Attorneys or
Solicitors. It is significant that cl 11 made an
express provision that ‘no other persons
whatsoever’ would be allowed to appear and
plead or act. The Court was therefore the
exclusive preserve of members of the British
Legal Profession. This was the position in
what were known as the King’s Courts.
On the other hand, Indian Legal
Practitioners would appear in the
Company’s Courts. Immediately before the
advent of British power in India, the
administration of Justice in Northern India
was in the hands of the courts established by
the Mughal Emperors or ruling chiefs owing
allegiance to them. Apart from them, pretty
chieftains and big zamindars had courts
exercising civil and criminal jurisdiction.
After the arrival of Warren Hastings in
1972, the civil and judicial administration of
the Mofussil territories outside Calcutta was
undertaken by the East India Company
itself.
Significantly, the Bengal Regulatories VII of
1793, which was created for the first time a
regular legal profession for the Company’s
Courts, permitted only Hindus and Muslims
to be enrolled as pleaders. The Indian High
Courts Act, 1862 authorised the creation by
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Letters Patent of High Courts in various
presidencies.
In Calcutta, the qualifications required for
admissions as a Vakil were a degree of
Bachelor of Arts or Science followed by
degree of Bachelor of Laws and two years of
Service as an articled clerk to an approval
practicing Vakil of five years standing.
The High Court has these three different
classes of legal practitioner, namely
Advocates, Attorneys and Vakils. Besides
the pleaders there was another class of legal
practitioners in the subordinate courts called
Mukhtars, who after passing the
matriculation examination were required to
pass the Mukhtarship examination held by
the High Courts.
A major feature of the Act is that
disciplinary control is vested with the Bar
Councils. Since 1973, by virtue of ability,
standing at the Bar or special knowledge or
experience in law, he deserving of such
distinction.
However in Bombay and Calcutta, solicitors
still exist as a class, and their societies
conduct examination to grant registration.
The Supreme Court rules also give
recognition to solicitors, by providing for
their enrolment as Advocate-on-Record
without the requirement of their having to
pass the examination conducted by the Court
for Advocate-on-Record.
While efforts are being made to modernize
the legal system through amendments to the
Code of Civil Procedure and the Code of
Criminal Procedure and by devising speedy
arbitration procedures, setting up of fast
track courts, computerization, etc. A notable
feature of the Indian legal profession in the
last two decades has been the emergence of
public interest lawyers. In a liberalized
economy, these lawyers specialize in
‘Transactional’ practice as against litigation
practice. On the other hand, the transactional
lawyers has to be more result oriented. It is
in the context that the present work seeks to
examine issues like advertising and multi-
disciplinary partnerships.
Establishment of Bar Council of India
The Bar Council of India is a statutory
body established under the section 4 of
Advocates Act 1961 that regulates the legal
practice and legal education in India. Its
members are elected from amongst the
lawyers in India and as such represents the
Indian bar. It prescribes standards
of professional conduct, etiquettes and
exercises disciplinary jurisdiction over the
bar. It also sets standards for legal
education and grants recognition to
Universities whose degree in law will serve
as a qualification for students to enroll
themselves as advocates upon graduation.
Purposes of Bar Council of India
Section 7 of the Advocates Act provides for
the following statutory functions of the Bar
Council of India:
1. To lay down standards of professional
conduct and etiquette for advocates;
2. To lay down the procedure to be followed
by its disciplinary committee and the
disciplinary committees of each State Bar
Council;
3. To safeguard the rights, privileges and
interests of advocates;
4. To promote and support law reform;
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5. To deal with and dispose of any matter
which may be referred to it by a State Bar
Council;
6. To exercise general supervision and
control over the state bar council;
7. To promote legal education and to lay
down standards of legal education in
consultation with the Universities in India
imparting legal education and the State
Bar Councils, With respect to this point,
the Supreme Court has made it clear that
the question of importing legal education
is entrusted to the Universities in India and
not to the Bar Council of India. All that
the Bar Council can do is to suggest ways
and means to promote suck legal
education to be imparted by the
Universities and for that purpose it may
lay down the standards of education.
Sections 7 do not entitle the Bar Council
itself to frame rules laying down pre-
enrolment as Advocate;
8. To recognize Universities whose degree in
law shall be a qualification for enrolment
for an advocate for that purpose to visit
and inspects Universities, or direct the
State Bar Councils to visit and inspect
Universities for this purpose;
9. To conduct seminars and organise talks on
legal topics by eminent jurists and publish
journals and papers of legal interest;
10. To organize legal aid to the poor;
11. To recognize on a reciprocal basis foreign
qualifications in law obtained outside
India for the purpose of admission as an
advocate in India;
12. To manage and invest the funds of the Bar
Council;
13. To provide for the election of its members
who shall run the Bar Councils.
14. To perform all other functions conferred
on it or under this Act;
15. To do all other things necessary for
discharging the aforesaid functions;
16. The Bar Council of India may constitute
one or more funds in the prescribed
manner
a. giving financial assistance to organise
welfare schemes for indigents, disabled or
other advocates;
b. giving legal aid or advise in accordance
with the rule made in this behalf;
c. establishing law libraries.
17. The Bar Council of India can also receive
grants, donations, and gifts for any of
these purposes mentioned under point no
16.
In Ex-Captain Harish Uppal v. Union of
India, the court held that section 7
provides in respect of the functions of the
Bar Council of India, but none of its
functions mentioned in section 7
authorizes it to paralyze the working of the
Courts. On the contrary it is enjoined with
a duty to lay down standards of
professional conduct and etiquette for
advocates. No Bar Council can ever
consider giving a call of strike or a call of
boycott. In case any association calls for a
strike or boycott the concerned State Bar
Council of India must immediately take
disciplinary action against the advocates
who gives a call for a strike. It is the duty
of every advocate to ignore a call of strike
or boycott.
In Raveendranath Naik v. Bar Council of
India, AIR 2007 Kar. 75 the court held that
the resolution passed by the Bar Council
India directing advocates not to participate
in any programme organised by the Legal
Services Authorities in any Lok Adalat or
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any legal aid programme has been held
illegal and void.
Section 7-A of the Advocates Act makes it
clear that the Bar Council of India may
become a member of international legal
bodies, such as, the International Bar
Association or the International Legal Aid
Association, contribute such sums as it
thinks fit to such bodies by way of
subscription or otherwise and authorised
expenditure on the participation of its
representatives in any international legal
conference or seminar.
Section 7(2) of the Advocates Act provides
that the Bar Council of India may constitute
one or more funds in the prescribed manner
for the purpose of:
(a) giving financial assistance to organise
welfare schemes for indigent, disabled or
other advocates;
(b) giving legal aid or advice in
accordance with the rules made in this
behalf;
(c) establishing law libraries.
It may receive any grants, donations, gifts or
benefactions for all or any of the purposes
specified above such grants, donations, etc.,
shall be credited to the appropriate fund or
funds constituted under this sub-section.
General Powers of BCI to make Rules An advocate shall not act or plead in any
manner in which he is himself pecuniary
interest.
An advocate shall not stand as a surety or
certify, soundness of a surety for his client
required for the purpose of any legal
proceedings.
Disciplinary Committee
Constitute one or more disciplinary
committee.
Each of which shall consist of three
persons.
Two shall be person elected by the
Council from amongst its members.
One shall be a person co-opted by the
council from amongst advocate.
Bench Bar Relation
Bar-Bench Relation in law refers to the
cordial relationship between the Advocates
and the Judges. The Bar (Advocates) and
Bench (Judges) play an important role in the
administration of justice. The judges
administer the law with the assistance of the
lawyers. The lawyers are the officers of the
court. They are expected to assist the court
in the administration of justice. As the
officers of the court the lawyers are required
to maintain respectful attitude toward the
court bearing in mind that the dignity of the
judicial office is essential for the survival of
the society. Mutual respect is necessary for
the maintenance of the cordial relations
between the Bench and Bar.
The opinion of our Supreme Court in
the context of Bench- Bar Relation has been
clearly laid down in P.D. Gupta v. Ram
Murti and Others1 as follows: "A lawyer
owes a duty to be fair not only to his client
but also to the court as well as to the
opposite party in the conduct of the case.
Administration of justice is a stream which
has to be kept pure and clean. It has to be
kept unpolluted. Administration of justice is
not something which concerns the Bench
only. It concerns the Bar as well. The Bar is
the principal ground for recruiting judges.
Nobody should be able to raise a finger
about the conduct of a lawyer. Actually
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judges and lawyers are complementary to
each other. The primary duty of the lawyer
is to inform the court as to the law and facts
of the case and to aid the court to do justice
by arriving at the correct conclusions. Good
and strong advocacy by the counsel is
necessary for the good administration of
justice. Consequently, the counsel must have
freedom to present his case fully and
properly and should not be interrupted by
the judges unless the interruption is
necessary."
Power to punish for professional or other
misconduct:
Section 36 of the Advocates Act empowers
the Bar Council of India to punish an
advocate for professional or other
misconduct. It provides that where on
receipt of a complaint or otherwise the Bar
Council of India has reason to believe that
any advocate whose name is entered on any
State roll has been guilty of professional or
other misconduct, it shall refer the case for
disposal to its disciplinary committee. The
disciplinary committee of the Bar Council of
India may, either on its own motion or on a
report by any State Bar Council or an
application made to it by any person
interested, withdraw for inquiry before itself
any proceedings for disciplinary action
against any advocate pending before the
disciplinary committee of any State Bar
Council and dispose of the same.
The disciplinary committee of the Bar
Council of India, in disposing of any case of
professional or other misconduct of
advocate shall observe, so far as may be, the
procedure laid down in Section 35 of the
Act. In other words in disposing of such
case, it shall fix a date for its hearing, cause
a notice thereof to be given to the advocate
concerned and Attorney-General of India,
Thus after giving the advocate concerned
and the Attorney General of India an
opportunity of being heard, it will dispose of
the case and may make any order which the
disciplinary committee of a State Bar
Council can make under Section 35(3) of the
Advocates Act. Thus, in disposing of such
case it may dismiss the plaint, reprimand the
advocate, suspend the advocate from
practice for such period as it may deem fit
and remove the name of the advocate the
State roll of advocates. Sub-section (4) of
Section 36 makes it that if any proceedings
are withdrawn for inquiry before the
disciplinary committee of the Bar Council of
India, the State Bar Council concerned shall
give effect to any such order.
RIGHTS AND PRIVILEGES OF
ADVOCATES
1. Right of Advocates:
Right to Practice: The most important of
right conferred to a lawyer is his/her right to
practice but there are a plethora of
conditions which has to be fulfilled for
allowing a lawyer to exercise his right to
practice. This is the only right of advocates
that has been codified and placed in the
Advocates Act, 1961 with the duties and
code of conduct of lawyers. This is an
exclusive right and has been conferred to a
set of people who are deemed to be qualified
to represent others. Earlier even friends and
family could represent an accused on facts
but due to demand of unification of bar,
Section 29 was incorporated whereby there
will be only one recognized class of persons
entitled to practice the profession of law i.e.
the advocates.3 Advocates have been
conferred rights to practice not only in all
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courts including the Supreme Court but also
before any tribunal or person legally
authorized to take evidence and also before
any other authority or person before whom
such advocate is by or under any law for the
time being in force entitled to practice.4
Section 305 lays down the right in clear
words and Section 336 that is worded
negatively to exclude everyone other than an
advocate from practicing.
As a rule, a person who is not an advocate
on roll of a high court can not represent
accused but there are situations where the
courts have used their discretion to allow a
power of attorney holder to plead on behalf
of the parties. However it is imperative to
mention here that an advocate does not
include a person in whose favour a power of
attorney has been executed to take
proceedings in court as he cannot be placed
in the position of an advocate, who has been
given a vakalatnama.
However, the right of a lawyer to practice is
not an absolute right as there are a number
of fetters placed upon the same. Section 348
of the Act empowers high court to make
rules prescribing conditions subject to which
an advocate will be permitted to practice in
the High Court and the courts below. Hence,
an advocate’s right to practice in all courts is
subject to the rules made by High Court.
One thing to be noted in this regard is that
Section 30 has not come into operation as
yet. Section 1(3) of the Act suggests that the
provisions of the Act will come into effect
from the day notified by the Central
Government and since no such date has
been notified in the Official Gazette, the Act
has not come into full force. This position
was substantiated by the Supreme Court in
the case of Altmeish Rein v. Union of
India, AIR 1988 SC 1768 at 1771, wherein
the Apex Court held that a person enrolled
as an advocate is not ipso facto entitled to a
right of audience unless this section is first
brought into force. This also means that
Section 30, in its present form, does not
confer an absolute right to practice but is
subject to other provisions of the Act.
There have been several instances where
this right of advocates has upheld by the
Courts for instance in case of Jaswant Kaur
v. State of Haryana, AIR 1977 P&H 221,
where a full Bench of Punjab and Haryana
High Court held that the provisions under
Haryana Ceilings on Holdings Act
prohibiting an advocate from appearing
before any authority except Financial
Commissioner, were unconstitutional in
light of the Section 14 of the Bar Council’s
Act, even though Section 30 has not been
brought into effect.
However, there have been enough instances
wherein the right has been restricted for
other reasons. One of the most important
cases in this regard is that of Paradip Port
Trust v. Their Workmen, AIR 1977 SC 36,
where Section 36(4) of the Industrial
Disputes Act that forbids parties to
industrial dispute to be represented by a
lawyer except with the consent of other
parties and permission of the labour court,
tribunal etc. The court held that Section 30
of the Advocate’s Act would not be
applicable in this case as Industrial Disputes
Act is legislation with avowed object of
labour welfare and representation before
adjudicatory authorities has been specially
provided. It was also held that a special Act
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would override the provisions of Advocate’s
Act which is a general law.
There are a number of other restrictions
placed upon the right to practice of a lawyer
as they do not have a right to represent
others in departmental enquiries. It is also to
be noted that the Section does not confer
any right on the litigant to be represented by
the lawyer but only on a lawyer to practice.
Once a lawyer has been engaged in a case,
his right continues to be in existence unless
and until it is terminated by writing signed
by him or his client with the leave of the
court; it will also come to an end with the
termination of the proceedings or with the
death of the lawyer or that of the client.
It is however to be noted here that the right
to practice the profession of law is a
statutory right and not a fundamental right9.
It is also to be noted that only advocates,
who are enrolled as per this Section can
practice, while others not so entitled and
illegally practicing are punishable under
Section 4510 of the Act.
Section 32 of the Act provides for an
exception to the application of Section 30
and provides for situations where persons
other than advocates enrolled with the Bar
can represent others with the permission of
the court. This provision acts as an antithesis
to the provision under Section 30 as the
court has been given discretion to allow any
person, not an enrolled advocate to practice
law. However, this might be a necessity in
certain cases and we need to reply upon the
wisdom of the courts to take the right
decision in this regard. This position was
substantiated by the case of T.K
Kodandaram v. E. Manohar,11 where no
lawyer was ready to defend the case, the
court decided to allow the petitioner’s
brother to represent him. However, it is to
be kept in mind that the powers under this
Section have been given to the courts and
tribunals for special circumstances and they
ought to be exercised judiciously.
Another important aspect that is needed to
be considered here is the power of High
Court to make rules regarding right to
practice of the advocates. However, it has
been specified that the words ‘laying down
the conditions subject to which an advocate
shall be permitted to practice’ under Section
34 must be given a restricted meaning of
permitting physical appearance of the
advocate and not his general right to
practice.
2. Right to Fee:
One of the important rights of the advocate
is right to fee. An advocate has a right to his
fee and this right is absolute as it does not
depend upon winning or losing of the case
and in either case the client will have to pay
up the fee. A lawyer has no legal remedy if
his/her fee is not paid, but he accepts what
the client is willing to pay in accordance
with the bargain but in such cases advocate
can refuse to appear before the court. The
advocate has also a right to waive this right
and take up a case without charging any fee
at all.
Another aspect to be taken into account here
is that an advocate can be denied agreed fees
when he makes default or is found guilty of
misconduct but he cannot be deprived of
agreed fees where the case has been
withdrawn for policy reasons and the
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advocate has done some work in that
particular case12.
3. Lawyers Right To Lien Over Client’s
Papers:
Before India attained independence different
High Courts in India had adopted different
views regarding the question whether an
advocate has a lien over the litigation files
kept with him. In P. Krishnamachariar vs.
The Official Assignee of Madras13, a
Division Bench held that an advocate could
not have such a lien unless there was an
express agreement to the contrary. A Full
Bench of the Patna High Court in In re B.N.
Advocate14, held the view that an advocate
could not claim a right to retain the certified
copy of the judgment obtained by him on
the premise that an appeal was to be filed
against it. The Bench further said that if the
client had specifically instructed him to do
so it is open to him to keep it.
After independence the position would have
continued until the enactment of the
Advocates Act 1961 which has repealed a
host of enactments including Indian Bar
Council Act. When the new Bar Council of
India came into existence it framed Rules
called the Bar Council of India Rules as
empowered by the Advocates Act. Such
Rules contain provision specifically
prohibiting an advocate from adjusting the
fees payable to him by a client against his
own personal liability to the client. As a rule
an Advocate shall not do anything whereby
he abuses or takes advantage of the
confidence reposed in him by his client,
(vide Rule 24). In this context a reference
can be made to Rules 28 and 29 which are
extracted below:
Rule 28. After the termination of the
proceeding, the Advocate shall be at liberty
to appropriate towards the settled fee due to
him, any sum remaining unexpended out of
the amount paid or sent to him for expenses,
or any amount that has come into his hands
in that proceeding.
Rule 29. Where the fee has been left
unsettled, the Advocate shall be entitled to
deduct, out of any moneys of the client
remaining in his hands, at the termination of
the proceeding for which he had been
engaged, the fee payable under the rules of
the Court, in force for the time being, or by
then settled and the balance, if any, shall be
refunded to the client.
The issue was settled by the decision of the
Supreme Court in R.D. Saxena v. Balram
Prasad Sharma15 wherein the Supreme
Court declared in the negative. In holding
that giving the right of lien (unlike what is
allowed to a Solicitor in England) would
lead to disastrous consequences in as much
as the flow of justice would be impeded.
Court also noted that given the socio-
economic conditions prevailing in the
country, holding such a right of the legal
practitioner may be susceptible to great
abuse and exploitation. The Court setting
aside the technical objection that such
papers were under an agreement of bailment
declared that it was upon the ordinary
process of law that the lawyer should
recover his dues but not by retaining the
files of the client. The Supreme Court also
went on to declare that while it was a
professional duty and moral obligation of
the lawyer to return the brief when the client
required to change counsel but also declared
that not returning the files would be
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considered as professional misconduct on
the part of the erring lawyer.
4. Right to Access to Judge: One right of the lawyer is to have access to
the judge. Though the scope of this right has
not been defined anywhere, it is understood
that it is the right of a lawyer to have access
to the Judge in urgent judicial matters at any
time during the day or night and the judge
has to look into it. Another right of a lawyer
that has been considered quite odd is that a
lawyer has a right to refuse to recognize and
appear before a presiding judge, who is not
in the prescribed robe of a judge in the
court. The legal profession seems to be more
comfortable with the idea of allowing a
judge to disallow a lawyer in improper robe
but not to this right of lawyers as a result of
which it is never exercised.
Conclusion:
In the above discussion it is evident that the
persons belonging to learned professions are
under duty to exercise reasonable degree of
care and skill in performance of these
professional activities. It is fundamental
principles that to protect the interest of
consumers and to restore the faith of general
public in legal system the judicial
interpretation of the term „Service‟ and
deficiency of service‟ with respect to the
legal services keeping in to account the
intention of legislature and a objective of the
act is the need of society in present time.
A significant number of decisions given by
the consumer forums against the
professional service providers has brought
home, the clear message that the consumer
are not going to tolerate the unethical
practices of professionals and are liable to
pay the compensations for their deficient
services.
The legal profession is one of the most
maligned one. Literature abounds in
disparaging remarks again them, like this
quote from Shakespeare: “The first thing we
do, let‟s kill all lawyers.” There are several
remedies against erring lawyers, thought
most people avoid confrontations with them
as in the case of doctors. Lawyers can be
sued like doctors for breach of contract and
negligence. Claims for compensation can be
filed before the consumer forum for
damages suffered due to lawyer‟s
negligence. A lawyer has duty to take care
and be skilful while handling your case,
through there is no remedy against bad
advocacy. If you do not like your lawyer,
you are free to try another. But it is not
advisable to change him just because you do
not like his advice or he warns you that you
may lose. A lawyer who is sought to be
replaced may also strike back by not
returning the case filed until a hefty bill is
paid. He can claim a lien over it.
The conduct of lawyers is governed by the
Advocate Act, 1961. Under this law, Bar
Council have been set up in states and at the
Centre to enroll law graduate as lawyers, to
hear and decide cases of misconduct against
lawyers, to lay down standard of
professional conduct, and to establish
procedure of disciplinary committees. They
have other functions, which are more from
the welfare of the lawyers than for their
clients. Bar Councils are also enjoined to set
up legal aid committees.
A client may complain against his lawyer to
the state Bar Council which will refer it to
its disciplinary committee. This committee
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has the powers of a civil court and can
summon witnesses and records. If the
complaint is found to be true, the lawyer
may be reprimanded, suspended from
practice, or permanently removed from the
roll of advocates. Since only advocates are
allowed to practice in the courts, the last
step would throw him out of the profession.
Some of the instances of professional
misconduct are, Handling over the brief to
another lawyer without the client‟s consent,
representing conflicting interests without
telling the clients, soliciting briefs,
undercutting fees, and putting indecent
questions at trail. A lawyer could be tried as
any other offender in case of cheating or
other criminal offences. Proof of misconduct
must be beyond reasonable doubt.
C.P. Act, 1986 is the largest development in
India to protect the interest of consumers.
Any person can claim compensation under
the provision of Act including negligent
doctors. To get relief under C.P. Act, 1986,
the complainant should be a consumer as
defined under S-2(1)(d) of the Act and the
“service” for the deficiency of which the
complaint has been made should comes
within the circle of “service as defined under
S-2(1)(o) of the Act. As soon as the person,
who is trying to file a suit for compensation
in the Consumer Forum under the C.P.
Act,1986, proves that he is in the status of
consumer, and the act against which the
complain is there “service” under C.P.
Act,1986, he becomes entitled to do so. The
question is, whether the service of medical
professionals comes within the limit of
“service”. Except the some earlier decisions
courts have include the service of the doctor
under the term service and the patient as a
consumer as under the Act, on the basis that
they receive service on payment.
There is no clear cut definition, whether
Govt. hospitals comes under the purview of
the Act. Hence the policy maker or the
judiciary should take necessary step to bring
Govt. hospitals under the umbrella of the
C.P. Act, 1986 taking into consideration that
these hospitals are maintained from the
taxes paid by people and on larger
humanitarian grounds so that the ordinary
people who are the victims of negligent
doctors either of Govt. or private hospitals
and who are unable to approach ordinary
court file the complaint before the consumer
court to get redressal.
Since there is no express provision in CP
Act, 1986 to include the medical
professionals service within the purview of
the Act, therefore the role of judiciary has
become very important with this regard,
before the enactment of the Act the liability
of the doctor was decided on the basis of
„tort‟ by taking some principle like res ipsa
loquitor and the principles laid down by the
British court like Bolom test etc, but after
the enactment the question has been raised,
whether patients are being saved by
applying the C P Act, 1986 in case of
medical professionals.
In this scenario, judiciary has played very
significant role to protect patient from legal
and medical negligence. In the landmark
decision of the supreme court delivered in
Indian Medical Association v. V.P. Shanta,
A clear and effective law has been laid
down by the Supreme Court and has given a
clear cut ruling with regent to the inclusion
of service under C.P. Act, Supreme court
make it clear that service render to a patient
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by medical professionals by the way of
consultation diagnosis and treatment both
medicinal and surgical would fall within the
ambit of the „service‟, as defined in Sec.
2(1)(o) of the act except those service which
are render by the doctor free of charge.
It was further made clear that service
rendered by non-government
hospital/medical professionals where all the
person receives the service free of charge
are outside the expression of service but
persons those are poor who get free service
then it come within the ambit of „Service”
as in C.P. Act, 1986 because these
institutions provide free service by casting
these charges open those patient who are
economically competent.
It was also made clear in this case that a
person who has taken health policy thought
not paying charges but are consumer and are
entitled to get relief under C.P. Act, 1986
because in such condition the payment was
given by insurance company.
I tried my best to put the view of various
courts in the test of medical profession and
consumer protection while I am thinking as
a common citizen. I find that poor people
who cannot afford costly legal and medical
aid cannot get the compensation for
deficiency of service by Government legal
and medical professionals I do not at all
agree with the view of National Commission
as well as Madras High Courts view that
medical profession does not come under
consumer redressal whether private of
Governmental. But I am much agree with
present view of Supreme Court in Dr.
Suresh Gupta’s case and very recent in
Martin D’Souza case including Jacob
Mathew’s case in which courts brought the
service rendered by medical professionals
under the preview of C.P. Act, 1986 and
also has given direction to save them from
false litigation.
Suggestions:
For better expeditions and effective
redressal of the victim of legal the following
suggestions are made:
The Constitution of the consumer for
should be modified and the representatives
of the legal and medical profession with
integrity and proven track record should
be incorporated to the forum, so that as
and when a case of legal and medical
deficiency in services comes up before the
forum, it can be decided in a professional
manner by following the strict
professional standards.
In order to assure the lawyer and doctors
and to prevent cantankerous litigation,
Sec.26 of the Act should be amended so
that a false complainant may be fined
heavily and penalized.
The Lawyer would not come within the
ambit of s. 2(1)(o) of the Consumer
Protection Act, 1986, as the client
executes the power of attorney authorizing
the Counsel to do certain acts on his behalf
and there is no term of contract as to the
liability of the lawyer in case he fails to do
any such act.
Consumer Redressal Agencies should
carry out preliminary inquiries and
screening of all the cases filed against the
lawyer and doctors to detect the existence
of a prima-facie case. This should be made
mandatory at the time of admission of the
case itself.
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Consumption and intoxication of liquor by
lawyer and doctors should be forbidden
during working and duty hours.
Private practice by the government legal
professionals should be banned strictly.
Legal should be encouraged to follow
ethics and model code of conduct.
The doctrine of „Informed consent‟
should be adopted. The client and
patient‟s right to self determination which
forms the basis and enables him to form a
rational and informed choice should be
respected and enforced.
No attempt should be made in diagnosis
and treatment to amend cases of gross
negligence of glaring deviations from the
accepted norms of code of ethics for legal
and medical professionals.
Private/corporate hospital, also should be
made responsible at par with government
hospitals in paying compensation when
right to life is infringed which is protected
under Art. 21.
There should be a greater coordination
between the various professional
association and bodies like the Bar
Council of India, Indian Medical Council
and several associations like Bar
Association, Indian Medical Association
in ensuring the compliance with the code
of ethics and minimizing the cases of
deficiency in legal and medical profession.
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